This story contains details that may be disturbing to some readers.
A class-action lawsuit has been approved against Red Barn Market and a former assistant manager who filmed female employees in the bathroom of the grocer chain’s Cordova Bay location.
Matthew Schwabe, who worked as an assistant produce manager between February 2011 and May 2014, previously pled guilty to charges relating to taking videos and pictures of employees using the women’s bathroom at Red Barn Market at Mattick’s Farm. He was sentenced to jail for 15 months and probation for two years.
Now, two plaintiffs have filed the class-action lawsuit on behalf of those who were filmed or photographed without their knowledge or consent. There are six people who have been identified and contacted by Saanich Police, and seven additional people that police say are “potentially identifiable.”
The first plaintiff, identified as J.M., was 15 when she started working at the store in 2007 and worked there until December 2012. The second plaintiff, M.F., was 17 when she started in May 2012 and worked there until May 2014.
“Both plaintiffs deposed to what they described as inappropriate and sexualized behaviour directed not only to themselves, but other female employees at RBM,” the B.C. Supreme Court decision authorizing the class action suit says.
“J.M. deposed that she observed Matthew Schwabe “flirt and attempt to ask young women out on dates. If the women did not reciprocate, he would become rude and often would be very vocal about them, calling them names such as ‘bitch’.” M.F. deposed that she observed similar conduct on the part of Matthew Schwabe.”
The decision, written by Justice Brian Mackenzie, outlines the behaviour that J.M. and M.F. say led to the class-action lawsuit, including an allegation that Schwabe said he couldn’t help but comment on the clothing and appearance of female workers because he was “surrounded by a bunch of hot young girls in tight pants.”
Another Red Barn employee, who is only identified by the initials C.J. in the decision, alleges that when she was opening the store on March 12, 2013, Schwabe approached her and tried to talk to her while exposing his penis.
“C.J. tried to ‘seem busy’ and walk away, but Matthew Schwabe ‘remained standing, blocking the only entrance and exit’ and tried to converse with her for another five minutes or so with his penis exposed,” reads the court document quoting C.J.
C.J. says she reported the behaviour to a manager who replied “boys will be boys” then gave her phone number to Schwabe, who allegedly then called her to ask her not to report the incident.
“A male employee, A.N., described the culture at RBM as ‘locker room talk’, including ‘off-colour jokes, sexual banter, and comments about the physical appearances of female employees or women generally,'” the decision says.
None of the allegations contained in the class-action certification ruling have been proven in court.
Lawyers representing Red Barn Market tried to argue that the employer should not be included in the class-action lawsuit because it was not reasonably foreseeable that Schwabe would film and photograph employees in the bathroom.
“The plaintiffs say the wrongful act in the present case is RBM’s failure ‘to take steps in the face of evidence that its employee behaves badly around women and is sexually inappropriate. What happened as a result was in the range of foreseeable possibilities… that he was going to amplify his behaviour and cause harm by committing sexual misconduct of some kind or other,” the decision says.
“While I appreciate ‘mere possibility’ does not mean something is reasonably foreseeable, as noted in Rankin, I accept the plaintiffs’ submission that it was reasonably foreseeable Matthew Schwabe’s inappropriate conduct would evolve into more intrusive activities.”
In 2019, Schwabe had filed to stop the class action lawsuit from going ahead citing bankruptcy as the reason, but Mackenzie ruled that bankruptcy is not a valid reason to stop a class action suit.
The plaintiff’s lawyer, Sean Hern, tells CHEK News it took this long to get the final decision on whether the class action could proceed because the criminal proceedings had to be complete first.
“The only reason it’s been taking a long time is because there were criminal charges laid against him, and the civil case got stuck behind the criminal proceedings, and wasn’t able to proceed in an ordinary way,” Hern said. “So those resolved in November of 2021 and Schwabe was sentenced following a guilty plea and then he served 15 months in custody, and we were able to proceed with the civil case.”